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EXHIBIT 99.1
SAFE HARBOR COMPLIANCE STATEMENT
WE HAVE RECENTLY EXPERIENCED LOSSES, AND WE EXPECT TO INCUR LOSSES IN THE NEAR
TERM.
We experienced a net loss of approximately $4.4 million, or 34.0% of
our total revenue, in the year ended December 31, 1999, and a net loss of
approximately $7.9 million, or 133.3% of our total revenue, in the six months
ended June 30, 2000. At June 30, 2000, we had an accumulated deficit of $18.1
million. Our recent history of losses began as a result of our shift from
developing and marketing call accounting products only to also developing and
marketing an Internet usage management solution. We anticipate that planned
expenditures on sales, marketing and product development will result in
additional losses in the near term. Future expenditures on sales, marketing and
product development will be driven primarily by our ability to achieve our
targeted revenue goals.
Our rapid growth places a significant demand on management and
operational resources. In order to manage growth effectively, it is necessary
to implement and improve operational systems, procedures and controls on a
timely basis. In addition, the Company expects that future expansion will
continue to challenge its ability to hire, train, motivate and manage its
employees. Competition is intense for highly qualified technical, sales and
marketing and management personnel. If total revenue does not increase relative
to operating expenses, and management system do not expand to meet increasing
demands, and if the Company fails to attract, assimilate and retain qualified
personnel or its management otherwise fails to manage its expansion
effectively, there would be a material adverse effect on its business,
financial condition and operating results.
We are not certain when we will regain profitability. Even if we do
regain profitability, we may not sustain or increase profitability on a
quarterly or annual basis.
WE HAVE RECENTLY ADOPTED A NEW AND UNPROVEN BUSINESS MODEL.
In July 2000, we restructured our business into two distinct business
divisions - the Internet division and the Call Accounting division. Although we
were incorporated in 1986, our adoption of this new and unproven business model
imposes upon us many of the risks inherent in a company with a more limited
operating history. These risks include the failure of the new business model to
allow us to retain existing customers, attract new customers and maintain
customer satisfaction with our products. In addition, we will expend
significant management and financial resources on the restructuring of our
business. While we believe that focusing our employees on specific product
lines will allow us to provide better service to our customers, we cannot
assure investors that the restructuring will be successful. If our new business
model does not provide us with the ability to increase sales of our products,
our business, results of operation and financial condition will all be
adversely affected.
OUR OPERATING RESULTS ARE LIKELY TO FLUCTUATE, WHICH COULD ADVERSELY AFFECT OUR
STOCK PRICE.
During our operating history, we have experienced quarterly
fluctuations in our operating results, and we expect this trend to continue.
These fluctuations are caused by several factors described below and elsewhere
in this "Safe Harbor Compliance Statement" section, many of which are beyond
our control. Factors that affect our operating results include:
- the timing and release of new products or enhancements
- unexpected delays in introducing new products or enhancements
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- the timing of shipment and installation of products ordered
- delays of purchases of our products by customers who
anticipate the release of a new product or enhancement
- the amount and timing of our sales and marketing, product
development, or administrative expenses
Due to these factors, we believe that quarter to quarter comparisons
of our operating results may not be meaningful. Therefore, you should not rely
on the results of one quarter as an indication of our future performance.
Furthermore, we plan to increase our operating expenses to expand our sales and
marketing operations, develop new distribution channels, fund greater levels of
research and development, broaden professional services and support, and
improve operational and financial systems. Failure of our revenue to increase
along with these expenses could create fluctuations in our quarterly results of
operations.
WE HAVE DERIVED LIMITED REVENUES FROM OUR INTERNET PRODUCT TO DATE, AND WE MAY
NOT BE SUCCESSFUL IN ACHIEVING SUBSTANTIAL REVENUE FROM THIS PRODUCT.
We released the initial version of our Internet usage management
product in May 1997. Our initial Internet usage management product extracted
usage data from a limited number of Internet devices. For the years ended
December 31, 1998 and 1999, we derived revenue of $1.1 million and $1.4
million, respectively, from sales of our Internet product. However, we also
incurred significant costs in the development of this product and expect to
incur significant costs related to further sales, distribution and development
of our Internet product in the near term. We cannot guarantee that our Internet
product will achieve broad market acceptance and generate substantial revenue.
If our Internet product does not gain market acceptance or if we do not
introduce enhanced versions of our product on a timely basis, or at all, to
meet the needs of our customers, our business, results of operations and
financial condition would all suffer.
OUR SUCCESS DEPENDS ON CONTINUED ACCEPTANCE AND GROWTH OF THE INTERNET.
Sales of our Internet usage management solutions depend on the
continued acceptance and growth of the Internet. Because the Internet has only
recently become a viable medium for commerce and communications, demand and
market acceptance for Internet-related products are subject to high levels of
uncertainty and risk. The Internet has experienced, and is expected to continue
to experience, significant growth in the number of users and amount of traffic.
The Internet infrastructure may not be able to support the demands placed on it
by this continued growth. Furthermore, the Internet has experienced a variety
of outages and other delays as a result of damage to portions of its
infrastructure, and such outages and delays could adversely affect the Internet
usage of organizations utilizing our solutions. Additionally, the Internet
could lose its viability due to delays in the development or adoption of new
standards and protocols to handle increased levels of Internet activity or due
to increased governmental regulation. Moreover, critical issues concerning the
commercial use of the Internet remain unresolved and may negatively affect the
growth of Internet use and the attractiveness of commerce and communication on
the Internet. If critical issues concerning the commercial use of the Internet
are not resolved in our favor, if the necessary infrastructure and
complementary products are not developed, or if the Internet does not become a
viable commercial marketplace, the demand for our Internet usage management
solutions could be significantly reduced, which would have a material adverse
effect on our business, results of operations and financial condition.
WE MAY NOT BE ABLE TO CONTINUE TO COMPETE SUCCESSFULLY WITH OTHER COMPANIES
THAT PROVIDE SIMILAR PRODUCTS.
We currently compete with providers of Internet management software,
including WebTrends, Accrue Software, the SecureIT division of VeriSign, Elron
Software, Talley Systems and Sequel Technology and providers of call accounting
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software, including IntegraTrak, ISI, MicroTel, Switchview, Telco Research,
Verimark, Xiox and Xtend. The market in which we compete is intensely
competitive, increasingly subject to rapid changes, and significantly affected
by new product introductions and other activities of market participants. In
addition, the market is highly fragmented, and our competitors vary depending
upon the segment of the market that our network usage management solutions
address.
In addition to current competition from producers of network usage
management solutions, in the future we may experience competition from vendors
of network devices, such as AXENT Technologies, Inc., Check Point Software
Technologies Ltd., Cisco Systems, Inc., Lucent Technologies, Inc., Microsoft
Corporation, Netscape Communications Corp., Nortel Networks Corporation,
Siemens Corporation and others, that could bundle network usage management
solutions with their network products. The bundling of competing products with
network devices could make it more difficult for us to market our products or
render our products obsolete. Even if the functionality, ease of use, and
performance of the products included with network devices is inferior to that
of our products, a significant number of customers may elect to accept these
products instead of purchasing additional software from us. In addition, we
believe that additional competitors will continue to enter the market as the
size and visibility of the market opportunity increases. These new market
entrants may include traditional system and network management software
developers.
We also face competition from Internet management service providers,
such as consulting firms, web design firms, Internet audit firms, site
management vendors, Internet service providers and independent software
vendors. These service providers may use our solutions, our competitors'
solutions or custom-developed solutions to provide network usage management
for their customers who otherwise would have been sale opportunities for us. In
addition, certain larger potential customers may rely on their IT departments
to internally develop Internet usage management solutions.
Many of our current and potential competitors have longer operating
histories, greater name recognition, access to larger customer bases, and
substantially greater financial, technical, marketing, distribution, service,
support and other resources than we have. As a result, they may be able to
respond more quickly than we can to new or changing opportunities,
technologies, standards or customer requirements. Our inability to develop
products that are technologically competitive, responsive to customer needs and
competitively priced could have a material adverse effect on our business,
results of operations and financial condition.
WE MUST INCREASE BRAND AWARENESS OF OUR PRODUCT TO REMAIN COMPETITIVE.
Due in part to the emerging nature of the market for Internet usage
management solutions and the substantial resources available to many of our
competitors, we may have limited time to achieve and maintain a significant
market share. Developing and maintaining awareness of the Telemate.Net brand
name is critical to achieving widespread acceptance of our network usage
management and reporting solutions. Furthermore, the importance of brand
recognition will increase as competition in the market for our products
increases. Successfully promoting and positioning the Telemate.Net brand will
depend largely on the effectiveness of our marketing efforts and our ability to
develop reliable and useful products at competitive prices. Therefore, we plan
to increase our financial commitment to create and maintain brand awareness
among potential customers. If we fail to successfully promote our brand name or
if we incur significantly greater expenses than planned in promoting and
maintaining our brand name, it could have a material adverse effect on our
business, results of operations, and financial condition.
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IF WE DO NOT CONTINUE TO EXPAND THE DISTRIBUTION OF OUR PRODUCTS THROUGH DIRECT
AND INDIRECT SALES CHANNELS, OUR OPERATING RESULTS WILL SUFFER.
In order to increase our market share and revenue, we will need to
expand our direct and indirect sales operations and channels of distribution.
We have a broad base of customers, most of whom license a limited number of our
products. To improve our results of operations, we must increase our base of
customers and the number of products that each customer licenses. This may
require an increasingly sophisticated sales effort. In order to achieve
increased sales, we plan to hire additional sales personnel. Any new hires will
require training and take time to achieve full productivity. We may not be able
to hire enough qualified individuals when needed, or at all. Failure to do so
could have a material adverse effect on our business, results of operations,
and financial condition.
Our future success also depends upon our ability to expand our
relationships with domestic and international distributors, value-added
resellers, systems integrators, on-line and other resellers, Internet service
providers and original equipment manufacturers to build our indirect sales
channels. We currently maintain non-exclusive relationships with leading
networking and network security vendors that help market and distribute our
products, but we do not have written agreements with most of these companies.
We must also continue to expand and maintain our non-exclusive relationships
with key hardware and software vendors, distributors and resellers. We may not
be successful in these efforts. Moreover, because we do not have written
agreements with most of these parties, we cannot guarantee that these
relationships will continue at all or on terms acceptable to us.
IF OUR SOFTWARE CONTAINS DEFECTS, OUR SALES ARE LIKELY TO SUFFER AND WE MAY BE
EXPOSED TO LEGAL CLAIMS.
Our products and product enhancements are very complex and may from
time to time contain defects or result in failures that we did not detect or
anticipate when introducing such products or enhancements to the market. In
addition, the computer and Internet environments in which our products are used
are characterized by a wide variety of standard and non-standard configurations
and by errors, failures and bugs in third-party platforms that can impede
proper operation of our products. Despite our testing, defects may still be
discovered in some new products or enhancements after the products or
enhancements are delivered to customers. The occurrence of these defects could
result in:
- product returns;
- adverse publicity;
- loss of or delays in market acceptance of our products;
- delays or cessation of service to our customers; or
- legal claims by customers against us.
Our end-user licenses contain provisions that limit our exposure to
legal claims, but these provisions may not be enforceable in all jurisdictions.
To the extent that our contractual limitations are unenforceable or such claims
are not covered by insurance, a successful products liability claim could have
a material adverse effect on our business, results of operations and financial
condition.
OUR BUSINESS IS DEPENDENT ON OUR CHIEF EXECUTIVE OFFICER AND PRESIDENT.
Our success depends largely upon the continued services of our Chief
Executive Officer and President, Richard L. Mauro. We cannot guarantee that Mr.
Mauro will continue to remain an employee. We have insurance on the life of Mr.
Mauro, but there can be no assurance that the proceeds of this insurance would
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be adequate to compensate us for the loss of his services.
IF WE FAIL TO HIRE AND RETAIN ADDITIONAL PERSONNEL, WE WILL BE UNABLE TO GROW
OUR BUSINESS.
We intend to hire a significant number of additional sales, support,
marketing and development personnel. Our future success depends on our ability
to attract and retain highly qualified personnel in these areas. In the past
three years, our employee turnover rate has been between 20% and 30%. Moreover,
the competition for qualified personnel in the computer software and Internet
markets is intense, and we may be unable to attract, assimilate or retain
additional highly qualified personnel in the future. This could have a material
adverse effect on our business, results of operations and financial condition.
WE MUST EFFECTIVELY MANAGE THE GROWTH OF OUR BUSINESS TO BE SUCCESSFUL.
We are rapidly expanding our operations. This expansion has placed a
significant strain on our management and on our operational and financial
resources, which we expect will continue. If we are unable to manage our growth
effectively, our business could be materially and adversely affected. To
successfully manage our future growth, we will need to upgrade our resources
and systems as well as expand our employee base. Our future performance will
depend, in part, on our ability to effectively integrate our newly-hired
executive officers into our management team. We cannot be certain that our
management, operational and financial resources will be adequate to support our
future operations.
INFRINGEMENT OR DUPLICATION OF OUR PROPRIETARY TECHNOLOGY COULD HARM OUR
BUSINESS.
We currently rely on a combination of patent, trademark, service mark,
trade dress, copyright and trade secret laws, as well as confidentiality
provisions and contractual provisions to protect our proprietary technology.
However, we cannot guarantee that third parties will not infringe or duplicate
this technology and offer competing products that are substantially similar to
ours.
We currently have registered trademarks in Telemate and Telemate.Net
and one patent application pending on our Telemate.Net integrated network usage
management product. We cannot guarantee that this application or any future
applications to protect our intellectual property will not be rejected. Even if
they are not rejected, trademark, patent, copyright and trade secret protection
may not be effective or available in every country in which our products are
distributed or made available through the Internet. Despite taking steps to
protect our rights, third parties could infringe or misappropriate our
proprietary rights. Also, most protections do not preclude competitors from
independently developing products with functionality or features substantially
equivalent or superior to our products. Any infringement, misappropriation or
third-party development could have a material adverse effect on our business,
results of operations and financial condition.
In the future, litigation may be necessary to enforce and protect our
trade secrets, copyrights and other intellectual property rights. Legal
standards relating to the validity, enforceability and scope protection of
intellectual property rights in Internet-related industries are uncertain and
still evolving, and the future viability or value of any of our intellectual
property rights is uncertain. Litigation, regardless of its outcome, would
divert management resources, be expensive and may not effectively protect our
intellectual property.
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OUR BUSINESS COULD BE HARMED IF WE ARE SUBJECTED TO INFRINGEMENT CLAIMS BROUGHT
BY THIRD PARTIES.
In addition to the technology we have developed internally, we also
use code libraries developed and maintained by Greenleaf Software, Stingray
Software and Microsoft and have acquired or licensed technologies from other
companies. Our integrated network management solutions are built around an
embedded Microsoft SQL 7.0 database and Seagate Software, Inc.'s custom report
writing tool. Our internally developed technology, the code libraries or the
technology we acquired or licensed may infringe on a third party's intellectual
property rights, and such third parties may bring claims against us. Such
claims and any resulting litigation could subject us to significant liability
for damages and invalidate our proprietary rights. Any infringement claims
against us could also force us to do one or more of the following:
- cease selling, incorporating or using products or services
that incorporate the challenged intellectual property;
- obtain from the holder of the infringed intellectual property
right a license to sell or use the relevant technology, which
license may not be available on reasonable terms or at all;
or
- redesign those products or services that incorporate the
disputed technology.
Any of these results could have a material adverse effect on our
business, results of operations and financial condition.
OUR PRODUCTS COULD BE TAMPERED WITH AND RENDERED INEFFECTIVE BY COMPUTER
HACKERS.
Because our products access a wide range of information relating to
our customers' businesses, computer hackers may attempt to infiltrate our
software systems to obtain sensitive data and information regarding our
customers. In addition, some of our products monitor network security. There is
a risk that those products will be targets of attacks by computer hackers who
create bugs or viruses or otherwise breach the security of those products in an
attempt to sabotage their functionality. Although we know of no material
infiltration of our products by hackers to date, our Internet usage products
are new and we cannot guarantee that we will be able to respond to such attacks
in a timely or effective manner. Any failure to do so could result in claims
against us and make it difficult for us to market and sell our products.
GOVERNMENT REGULATION COULD INCREASE THE COSTS OF DOING BUSINESS ON THE
INTERNET AND NEGATIVELY AFFECT SALES OF OUR PRODUCTS.
As Internet commerce continues to evolve, increasing regulation by
federal, state or foreign agencies becomes more likely. Such laws and
regulations could affect the network usage management activities of our
customers. Regulation, if imposed, is likely to be in the areas of user
privacy, pricing, content, and quality of products and services. Taxation of
Internet use, or other charges imposed by government agencies or by private
organizations for accessing the Internet, may also be imposed. Furthermore, any
regulation imposing fees for Internet use could result in a decline in the use
of the Internet and the viability of Internet commerce, which could have a
material adverse effect on our business, results of operations and financial
condition.
OUR CHARTER DOCUMENTS AND GEORGIA LAW MAY PREVENT OR DELAY A FUTURE MERGER OR
ACQUISITION, THUS LOWERING OUR STOCK PRICE OR PREVENTING OUR SHAREHOLDERS FROM
REALIZING A PREMIUM OVER OUR STOCK PRICE.
Our Articles of Incorporation and Bylaws may have the effect of
delaying, preventing or making a merger or acquisition less desirable to a
potential acquirer, even where shareholders may consider the acquisition or
merger
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favorable. In addition, the issuance of preferred stock may have the effect of
delaying, deferring or preventing a change in control without further action by
the shareholders. Any such issuance may materially adversely affect the market
price of our common stock and the voting rights of the holders of our common
stock. The issuance of our preferred stock may also result in the loss of
voting control by the holders of our common stock to the holders of our
preferred stock. In addition, provisions of the Georgia Business Corporation
Code also may delay, prevent or discourage someone from acquiring or merging
with us. The prevention or delay of a merger or acquisition could reduce our
stock price or prevent our shareholders from realizing a premium over our stock
price.
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